Category: Q&A

1. Applying EAD Encounters Two Situations

A reader asks:

My PD is at the end of July 2022, and now EB1 Form B can be submitted to I-485 to apply for EAD. Now I encounter two situations and want to ask for advice respectively.
1. My wife came to the United States on a J-2 visa from 2004 to 2006, and the old passport she used has been lost. She then returned to China and came to the United States to study again in 2020, using a new passport. Now that I-485 is submitted, a copy of the previous passport must also be submitted, and the old passport has a stamp for entering and exiting the United States, which can prove that the J-2 meets the two-year service requirement of the home country. However, now the old passport is lost. How should I deal with this situation?

2. My wife is currently a student with an F-1 visa and is expected to graduate by the end of next year. She is currently being interviewed for an intern in the summer next year. If I submit the I-485 together with me now, if I want to intern next summer, will I have to activate the I-485 combo card? She can no longer apply for an OPT EAD card. If I submit the I-485 separately now and submit it to her when the deadline is approaching, she might be able to apply for OPT EAD first and then get the combo, or should I submit the I-485 together now while she is intern? Also use I-485 EAD?

Mr. Lee answers,
To your first question, your wife can present a copy of the dependent  DS-2019 form that she had when she came to the US under the J-2 visa; her affidavit explaining what she was doing from 2006 to 2020; and backing that up with whatever evidence that she has of her residence in China or any other country including any subsequent passports that she may have applied for and received outside of the United States.

To your second question, I do not see any disadvantage in filing I-485 applications for both of you at this time. You can both apply for employment authorization cards. I note that we have been seeing USCIS move faster on approving EAD cards based on I-485 filings, most coming well before six months in uncomplicated cases. In addition, USCIS is now giving five years validity time to EAD’s s based upon adjustment.

2. A Renewal of the H-1B Visa in Canada Should Not Be a Problem

A reader asks:
I applied for I-140 and am waiting for approval. However, I still have an H-1B visa in hand, which can last for a while. Even if it expires, I plan to go to Canada to sign it back because I cannot leave the country while waiting for the I-131, which affects my vacation. I would like to ask if there are any disadvantages to submitting I-485 without I-131? For example, will it be slower or something? Can it be only fileI-485, not fileI-131?

Mr. Lee answers:
An I-131 application for advance parole while an I-485 adjustment of status application is pending is purely a benefit and not a detriment. Filing without the advance parole application will not slow the processing of the I-485. With the unexpired H-1B visa, you can travel in and out of the US during the time of processing of the adjustment application. Upon expiration, you should be able to have it renewed since the H-1B is a dual intent visa, allowing an individual to remain in the US on H-1B status while the permanent residence application is pending. Normally a renewal of the H-1B visa in Canada should not be a problem, although US consulates in many countries are wary of giving visas to third country nationals.

3. For an Expiring Combo Card, You Can Make New Applications

A reader asks:
In 2021, when my EB-1A was approved, I still had a pending NIW. In December 2021, I-485 was submitted based on approved EB-1A, and the pending NIW was also withdrawn. Unfortunately, I-485 was still transferred to NSC. In February 2022, there was no movement after the fingerprints were taken. During this period, I also received a NIW withdrawal notice. I received the combo card in June last year. This year I went to congressmen and the White House to urge me, but all I got were template responses from CIS. At this moment, the combo and physical examination are about to expire. what do I do?

Mr. Lee answers:
Unfortunately, USCIS is a money strapped agency and cannot adjudicate all of its cases on a timely basis. That can be seen from the long backlog processing dates that it releases to the public. For an expiring combo card for employment authorization and advance parole, you can make new applications. At this time, there is no additional USCIS filing fee for either application where the I-485 application remains pending. As for the medical examination, it is currently good for two years, and so it is up to you whether to take another one at this time or wait until USCIS is ready to adjudicate and requests a new medical.

4. Premium Processing Application lockbox Address

A reader asks:
I applied for EB-1A for special talents. Last week, UPS sent it to TSC Premium Processing. Today, the entire application was returned. The rejection letter from USCIS said: The fee for the I-129 petition I submitted was incorrect. What’s happening here? I applied for EB-1A and submitted I-140, not I-129 at all. No matter in the I-907, I-140 or cover letter I submitted, it was clearly stated that I was applying for EB-1A. The only thing I can think of is, should I fill in the I-907 and I-140 that I applied for E11? Maybe the people reading it don’t know that EB-1A is E11?

Another possible reason I think is that they thought I sent it to the wrong jurisdiction. I am not in the United States now. When I sent the application, I filled in the mailing address of my previous residence in New Jersey (TSC jurisdiction) and asked the landlord to collect it on my behalf. Physical address is the Chinese address filled in. Maybe they think I can’t send it to TSC using a c/o mailing address in TSC’s jurisdiction. But even so, should a Chinese address be able to send TSC?

Mr. Lee answers:
If you submitted the fees of $700 and $2500, they would be correct fees and USCIS should not have rejected the I-140 petition for alien worker and I-907 premium processing application. It appears that your choice is to send them the same package with an explanation, or to redo the forms and send in the paperwork again. On where to send an application if you are in China, the current address for a person stating an address in New Jersey is:

USCIS Chicago Elgin Lockbox

U.S. Postal Service (USPS):

USCIS
Attn: Premium I-140
P.O. Box 4008
Carol Stream, IL 60197-4008

FedEx, UPS, and DHL deliveries:

USCIS
Attn: Premium I-140 (Box 4008)
2500 Westfield Drive
Elgin, IL 60124-7836

5. Mailing Address and Residential Address

A reader asks:
I am going to apply for I-140. The mailing address (5b-5g) in Part 4 of the form is the Chinese mailing address filled in Chinese. Foreign address (3a-3f) is the Chinese residential address filled in English. Can these two be filled in differently?

Mr. Lee answers:
Mailing address and residential address are many times different. That is the reason for which USCIS gives the two spaces. Many individuals have different mailing addresses for security reasons or because they just prefer that their mail goes to a different address.

1. H-1B Transfer Petition Usually Takes About 2-4 Months

A reader asks:
Recently, I have changed my job, and I hope to hear the lawyer’s opinions about my H-1B and EB-2 green cards issues. 1. About H-1B. If I am in the current company but change positions, will it be affected? 2. About H-1B. If I go to a new company, how long will the transfer take? If I want to go back to my country, do I have to wait until the transfer is completed? 3. About EB-2. My priority date is March 2020 and is not current yet. Assuming my start date at the new company is six months away, can I ask the new company to start with EB-2 (PERM), if my boss agrees. 4. If the new company provides EB-1C, can my EB-2 PD be used directly? 5. Assuming that my position in the current company has changed, but the job itself does not change, will it affect my current EB-2 status? What kind of situation can be considered as no impact?

Arthur Lee Esq. answers,
Your questions will be answered in the order that you presented them: (1) typically, if your job changes within your company you will need to file an H-1B amendment. If you take on significant new job duties or work in a higher-level (i.e. promoted to management etc.) you will need to file an H-1B amendment. If your job title changes without significant change in your job duties, then you may be excused from filing an H-1B amendment. This may be somewhat complex and an experienced immigration lawyer would help; (2) An H-1B transfer petition typically takes about 2-4 months for USCIS to adjudicate. The case may be filed in about 2-3 weeks if your petitioner/lawyer prepares it expeditiously. You may also apply premium processing on your H-1B transfer to receive a decision or further action in 15 calendar days. You may begin working for your new employer once your transfer petition is properly receipted by USCIS. However, you risk falling out of status and unauthorized employment if your H-1B transfer petition is ultimately denied. In the alternate, you may continue to work with your current employer until your H-1B transfer petition to the new company is approved. It would be a good idea to wait until your H-1B transfer is approved before going overseas since a consular officer will want to see your valid H-1B status paperwork as well as proof that you are employed with your new H-1B petitioner; (3) Yes, your new company can start the PERM process for you at any time as long as they intend to employ you upon your receipt of a green card; (4) Your old priority date can be used so long as your old I-140 approval was not revoked for fraud, misrepresentation, or material error and your labor certification was not revoked or invalidated. That being said, your will need to have your new I-140 under the EB-1 category approved before you can apply for permanent residence via consul processing or adjustment of status. (5) If your position changes from your EB-2 position, but your duties and responsibilities do not change, you should generally still be able to use it as the basis for your green card application. As a rule, your new job can be “ported” to your green card case if 180 days after your I-485 is filed, you are working in a new position that is a “same or similar” occupation that was originally petitioned for you (assuming other eligibility criteria are met). Therefore, if you are in a different position with similar responsibilities, or elevated responsibilities (e.g. financial analyst -> financial manager) you may be eligible for porting to your new position under your approved EB-2 I-140.

2. You Cannot Work in the U.S. While Traveling in the U.S. and EB-3 is Waiting for Priority Date to Become Current .

A reader asks:
I applied for I-140 in China, it has been approved, and I am waiting for the schedule. I want to take my children to the United States, and I have already booked the air tickets, but when I just registered for EVUS, I encountered a problem. The question is, how do I report whether you are currently seeking employment in the U.S. or are you working in the U.S. without prior permission from the U.S. government? How do I answer that?

Arthur Lee Esq. answers,
On the question of whether you are currently seeking employment in the US or have worked in the US without prior permission, you should answer “no” assuming that you have never worked in the US without authorization. You have an approved I-140, and are waiting for your priority date to become current. This will be future employment for you. On this particular visit where you will take your children to the US as tourists, I assume that you will not be seeking employment. You will be there strictly for pleasure. Therefore, you can answer “no” and just visit the US without taking employment on this visit, and then move there on a permanent working basis on an immigrant visa once your priority date is current and you are successfully interviewed at the U.S. consulate.

3. Once 180 Days Elapse from the Filing of Your I-485, You May Port to a New Job in a Same or Similar Occupation.

A reader asks:
I have just submitted I-485 in the Bay Area for a month, but I feel that I may be fired. Now the market is generally uncertain whether I can find a new job within 60 days. In this case, if the USCIS does not process my case within 180 days, and then I find a similar job within 180 days, can I use I-485j port at that time?

Arthur Lee Esq. answers,
Yes. Once 180 days elapse from the filing of your I-485 application, you may port to a new job in a same or similar occupational classifications as the one that was the basis of your I-140 assuming your I-140 is approved or will ultimately be approved.  However, please ensure that your job is indeed in the same or similar occupational classification. You can do this by comparing your new job title and responsibilities with your old job title and responsibilities. Look at your previous I-140 petition for your job title, responsibilities, and importantly, the SOC code of your old position. If your new job may fall into the same SOC code, then chances are that your job can be ported. If it is a natural career progression of your old position (e.g. computer systems analysts to computer systems managers) then your job is likely portable as well. If your job is in a “similar occupational classification,” meaning that your occupation shares essential qualities with the occupation on your I-140, then your job may be portable. As part of this evaluation, officers may consider various factors relating to the jobs such as the SOC codes assigned to the respective jobs; job duties; job titles; required skills and experience; educational and training requirements; licenses and certifications specifically required; offered wage or salary; and any other material and credible evidence relevant to a determination of whether the new position is in the same or similar occupational classification. It is a good idea to consult with an experienced immigration attorney on job porting issues.

1. All Evidence should be Provided When Receiving RFE

A reader asks:
I am the main applicant and received the RFE letter from USCIS yesterday, and my wife also received the RFE letter. My letter mainly asked to prove the authenticity of the job offer, and when I submitted the I-485, I filed the I-485j together. I don’t know why I still need to prove the authenticity of the job offer. I don’t know why USCIS will ask me to provide information such as company financial statements? Mine is a large company, and information such as financial reports is public, and there is no possibility of problems. How should this question be answered? The wife’s letter requires proof of two things. One is to prove F-1 and OPT status. We intend to provide transcript proof directly. Not sure if a transcript is enough? Is there anything else that needs to be provided? The second is to require proof of legal status during the OPT extension. We have provided the I-20 and EAD card during the original filing, which shows the identity of the OPT extension. I don’t know why it is still required to provide proof materials? What other supporting materials do I need to provide?In fact, I feel that the materials required by the officer are not very important. For example, my company’s information and the two items my wife studied can completely pass the I-20 certificate that has been submitted. I really don’t understand what USCIS is trying to prove?

Arthur Lee Esq. answers:
You should understand that USCIS is an imperfect agency with officers of many different levels—some are better trained than others. As such, some officers will ask for further documents for things that other officers may conclude have already been proven. Some officers will know that a large, profitable, publicly traded company will have the finances to pay your salary. Others may not do their due diligence and research the companies on their own. Regardless, if you receive an RFE, it is a great idea to comply and provide all the evidence that the RFE asks for. RFEs will typically specify the types of documents that you should provide to fulfill the request. You should gather as many of those listed documents as possible to satisfy the adjudicating officer. Besides all the listed documents, I would advise you gather the following: (1) to prove the authenticity of your job offer, you may submit a signed letter from your company verifying your employment (specifying the date you were hired, that you are fulltime, what your position is, and your salary), as well as 2-3 months worth of recent paystubs; (2) if USCIS wants to verify the company’s finances, you may request the tax returns from your company, or in your case since it is a public company, just submit the most recent year’s tax returns and/or public financial documents such as the company’s 10-K, and/or a statement from the chief financial officer concerning the size of the company, your salary, and that the company is willing and able to pay the salary upon your obtaining permanent residence status; (3) USCIS typically requires a showing of maintenance of legal status at all times in the US for employment-based green care cases—so your wife must show that she has been in legal status for the time she has been in the US. Therefore, she should give in all I-20s since arriving in the US, diplomas and transcripts for all studies in the US, a letter verifying employment on her OPT status, as well as 2-3 months worth of recent paystubs.

2. Your EB-3 Priority Date Sometimes Can Be Used for Your EB-2 NIW

A reader asks:
My company is going to help me apply for EB-3. I plan to apply for NIW by myself, then resign and return to China to wait for the schedule. Excuse me, if so, can the PD of my company’s EB-3 be used in NIW? After I resign, the company’s EB-3 PD will no longer be available?

Arthur Lee Esq. answers:
You can use the priority date of your company’s EB-3 for your EB-2 NIW case only if certain conditions are met. Please note first that the priority date under EB-3 will be the date on which the PERM labor certification application (ETA 9089) is filed, which is after your sponsoring company performs recruitment and a test of the U.S. labor market. You may retain your priority date as long as your EB-3 I-140 is approved, and not subsequently revoked for fraud or misrepresentation, material error, or revocation of or invalidation of the labor certification. As long as all of these conditions are met, you may retain your priority date for an EB-2 NIW filing.

3. You May Leave the United States and Wait for Your Priority Date to Become Current While You Are Overseas

A reader asks:
I applied for NIW in the United States in March this year, and I-140 has been approved. After that, I will submit I-485 when the pd current of NIW is current. Recently, I want to go to Europe or other countries to study a related professional PhD. May I ask, in this case, is it still useful to apply for PD in the United States? If it is possible, will it not be approved when I submit I-485 later? If you can re-enter the United States, what visa should it be?

Arthur Lee Esq. answers:
You may leave the United States and wait for your priority date to become current while you are overseas. As such, you can leave the United States and go to study in Europe without affecting your priority date and your eligibility for the green card. Then when you are in Europe, if your priority date is close to current and the I-140 was marked for overseas processing, you may file a DS-260 immigrant visa application to apply for consular processing and obtain permanent residence upon entry to the United States assuming your interview was successful. Or if you wish to come back to the US after your study is done and subsequently apply for an I-485 adjustment of status application for permanent residence, you should apply for a visa that is appropriate for your situation. It would be best if you filed for a “dual intent” visa that allows you to enter the United States whether you intend to stay permanently or return to your home country. H-1B and L-1 visas, for instance, are dual intent visas. An O-1A or O-1B (although not) is also often treated by adjudicating officials as a dual intent status. If you come in on a visa that does not allow dual intent, such as a B-1/B-2 visitor visa, and then apply for an I-485 based upon your approved NIW, you risk being accused of misrepresentation by an adjudicator. A USCIS adjudicator may find that you had intended to enter and remain in the United States on such a visa that can only be granted to somebody who intends to leave the United States before expiration. Therefore, in your situation assuming that you definitely leave to go to Europe and study, your best alternatives would be to either: (1) apply for a green card at an overseas consulate when your priority date becomes current and enter the United States as a permanent resident assuming you pass your immigrant visa interview; or (2) come back into the United States on a dual intent work visa such as H-1B or L-1 assuming that you qualify for one of these, then apply for I-485 when you are in the United States. On possibly entering the United States on a non-dual intent visa such as an F-1 schooling visa or B-1/B-2 and applying for adjustment of status once your priority date becomes current, the question of intent could possibly be helped by the interim of time that passes from your entry and the filing of Form I-485. I also note that it is positive that you are studying for a PhD related to the field of your NIW endeavor since that will help demonstrate to an immigration officer that you are committed to your field of endeavor as stated on your approved I-140.

A reader asks:
I handed in my re-entry permit at the end of December last year. On January 23 this year, I received a notice that the finger print was taken, which means that the fingerprints recorded before can be reused, and there is no need to print them. At present, I am considering returning to China for a year, and I have already returned to China, and I am applying for a reentry permit at the same time. However, the case has been stuck here. According to the USCIS website, the current reentry permit takes 17 months. I wonder if it really takes this long? If I still can’t get down, do I have to return to the United States?

Alan Lee, Esq answers,
Although the official USCIS published processing time for 80% of reentry permits is currently 17.5 months, that does not mean that your application will pend for that long. In looking at our recent past cases, we have had reentry permits approved taking as long as 19 months and as short as 9 months. The permanent resident card (green card) only allows the holder to be outside the United States at maximum 364 days. If you have not received the reentry permit, we strongly advise you to return to the States within the time permitted on the green card. If you stay outside the one-year limit, you would essentially be relying on the reentry permit being approved and shipped to you overseas for your entry back to the States after one year. A problem with approval or your residence receiving it in the US or with shipping it to you overseas could endanger you permanent resident status.

My I-485 is pending now, and my H-1B is about to expire. Last month I just filed my H-1B extension, and it is currently pending. My wife is my dependent and just filed her I-485, and planning to apply her H-4. My question is, if my I-485 is approved, will my H-1B be invalidated immediately? Will my wife’s H-4 application be affected?

Arthur Lee answers:

I see that you are concerned about the fact that your wife filed later than you for I-485 benefits and that you may be approved before your wife. Unfortunately, your wife’s H-4 application becomes invalid as soon as you are approved as a permanent resident. That is because you no longer hold H-1B status as soon as you become a permanent resident. H-4 is not an independent status and is entirely dependent upon there being a H-1B principal. That being said, your wife is allowed to stay here legally during the time that her I-485 application is pending. If she requires employment authorization, she can apply for an EAD based upon the adjustment if she has not already done so.

 

1. Work normally with curtain working visa may be able to go to school part-time

A reader asks:
My I-140 was recently approved, and I have worked for so many years, and now I want to work part-time and study part-time. But my GRE and TOEFL have expired and want to take the exams again. Can I not be considered as an international student at this time?

Arthur Lee Esq. answers:
The answer here is dependent upon your current underlying nonimmigrant status. If you have F-1 status or are planning to change your status to F-1 to go back to school and successfully obtain an I-20, you can certainly study part-time (although that would take away your ability to work in most circumstances, save for CPT, eventual OPT, and on-campus part-time work). If you are under F-1 and have valid OPT or STEM OPT, you can do part-time schooling so long as you are able to fulfill your OPT/STEM OPT work hourly obligations. If you are under a working visa (i.e. an H-1B, L-1, O-1, etc.), you may engage in part-time schooling so long as you are able to fulfill your hourly working obligation. For instance, if you are a full-time (40 hour per week) worker under any of these statuses, you can attend school at night and work 8 hours per day. Of course, you may need to demonstrate to USCIS that you are working 40 hours per week through proof of pay, W-2s, and attestations from your employer. If you are attending school, but not working the number of hours you are supposed to be working under your current working visa, then you risk violating your immigration status.

2. I-485 has been submitted and can only allow to leave the US under advance parole, or H, L status

A reader asks:
I already have an approved I-140 (EB2) before, and now I am applying for a new I-140 (EB3) with the same PERM. My question is while this I-140 is pending, can I leave the country and come back to the US?

Arthur Lee Esq. answers:
The answer to the question depends in part upon whether you have already filed an I-485 adjustment of status application. If the adjustment has been filed and remains pending, you are only allowed to leave the US under advance parole or if you have H (specialized occupation) or L (intracompany transferee) status. If you are not at the point of filing for adjustment of status, the I-140 petition does not confer travel privileges. In that situation, your ability to leave the US and return would be dependent upon factors such as whether you have a valid visa for entry; whether you need to see a US consular officer for a visa to return and in that case, whether the visa that you are asking for has dual intent purposes. (You are obligated to disclose in a nonimmigrant visa application whether you have ever applied for an immigrant visa petition). In the event that you already have a pending I-485 based upon the EB-2 filing and are wondering whether you can travel while applying for an EB-3 visa status with the same PERM labor certification, that is able to be done through leaving the US under H or L status or advance parole based upon the pending I-485 application.

3. You have an unrevoked approved I-140, may be eligible for a 3 year H-1B extension/transfer

A reader asks:
I had approved I-140 in my previous company, and my H-1B has been used close to a total of 6 years and not much time left. If I am laid off and return to China at this time, wait a few years for the priority date to become current and then come back and use the remaining H-1B again, will the USCIS give me 3 years of H-1B or just the remaining of 6 years? I worry that the company will not give me an offer on the grounds that there is too little time left for the H-1B and the PD is current.

Arthur Lee Esq. answers:
If you return to China and then come back to the United States more than 1 year later, you will be able to restart another 6 years of H-1B assuming that you “win” the H-1B cap lottery. However, since you would be subject to the lottery unless you apply for a cap exempt organization this may not an ideal solution.

If you have an approved I-140, under certain conditions, you may be eligible for extensions beyond your 6th year without leaving the United States (or coming back into the United States after a couple of years out). Assuming that your priority date is not current, but you have an approved (non-revoked) I-140, you may be eligible for a 3 year H-1B extension/transfer. If you have an unrevoked approved I-140, and your priority date has been current for less than 1 year, you may be eligible for a 1 year H-1B extension.

4. It has been more than 180 days since I-485 was submitted then you can change your job

A reader asks:
If I go to school while my I-140 is still pending, and wait for the priority date to become current, then find a related job, can I apply for I-485? I feel the biggest obstacle is going to school/study will lose my H-1B and my right to work.

Arthur Lee Esq. answers:
Regarding your ability to apply for I-485 after finding a related job, you unfortunately are not eligible for porting since you have not yet filed your I-485 and thus cannot yet switch positions. Job portability, or the ability to move to a new job in the same or a similar occupational classification as the job offer for which an immigrant petition was filed is only available when an applicant’s properly filed I-485 has been pending for 180 days or more at the time that USCIS receives the request to port. In your case, it does not appear that you have filed an I-485. If your priority date is current at this time, you may file an adjustment of status application (with an intent to stay at your current job upon receipt of your green card), and then after 180 days have elapsed assuming your I-485 is still pending, then move to a same or similar position if you find one. But at this time, if you found a new job, you would have to file a new I-140 in addition to redoing the labor certification process if you are filing under EB-3 or EB-2 without Schedule A or NIW. You may be eligible to retain your current priority date so long as your I-140 petition is not revoked due to fraud, willful misrepresentation of a material fact, invalidation of labor certification, or material USCIS error. But aside from priority date retention, you would have to start your petition process over.

Regarding the schooling aspect of your question, you may go to school part-time under valid H-1B status. You can go to school so long as you are fulfilling your hourly obligations under H-1B status. For example, if you are a full-time worker (40 hours per week), you will need to work those 40 hours. If you are able to do schooling outside of those hours whilst still completing 40 hours of work per week, then there is nothing legally stopping you from going to school and studying. If you have an H-1B job that is part-time (say 20 hours per week), then you may go to school as long as you complete those 20 hours weekly. However, if you do not meet your work hourly obligations, you risk violating your H-1B status, which can complicate your I-485 application.

1. I have applied for the I-601 waiver of Communist Party membership and there should be no problem entering the country

A reader asks:
I am a member of the Communist Party of China. I applied for EB-1 with my wife. I-140 and I-485 were submitted together. The 601 main application has already got the card. I have been working with the combo card for a while, and now I am going to return to China. But I heard that the combo card will enter the small black room when entering the country, so the party member status is even more sensitive. I don’t know if you will be made things difficult in the small black room?

Alan Lee Esq. answers,
You are correct that applicants for adjustment of status who leave the US and return on advance parole mostly go into secondary inspection upon return. I am not sure that your description of a small black room is accurate. In the inspection, a Customs and Border Protection (CBP) inspector will generally look to see whether the application upon which the advance parole is based is still pending. The officer may also look at your information in the system to ensure that you do not have other reasons for inadmissibility, mainly on the criminal side. If you have already made an I-601 application for waiver of Communist Party membership, the membership should not be an issue for CBP unless something in the system indicates a danger to national security. Assuming that everything else is all right, the inspector should stamp your passport and allow you to enter.

2. NIW processing time is usually about 12 months

A reader asks:
Although I know that 63 days is not too long for NIW’s case, I check my status on case green every day. I roughly calculated that it will take 300 days for the number segment SRC239007 to be fully reviewed. Is this estimate correct?

Alan Lee Esq. answers,
You can check the USCIS processing times for most of the cases in the category to get a rough idea as to how long the NIW (National Interest Waiver) petition will take. Your case number begins with SRC (Southern Regional Center), which means that it is most likely with The Texas Service Center of USCIS. Currently, Texas projects 12 months waiting time for most of the NIW cases. For readers’ information, the other listed service center handling NIW’s, Nebraska, has an approximate wait time of 11.5 months. Kindly note that NIW petitions can now be premium processed at the cost of $2500 and that USCIS will reach the petition within 45 days of receipt of the I-907 premium processing application.

1. Company’s hiring freeze may affect PERM application

A reader asks:
The company is hiring freeze, but there is no layoffs. The departments that need to recruit are referred internally; it means there is no recruitment externally. If this is the case, can I still apply for a green card? Specifically which part will be affected? PWD, AD, or PERM?

Arthur Lee Esq. answers:
If there is a hiring freeze, the part of your application that may be affected is mainly the advertisement and recruitment stage. The PWD will not be affected since that is just a determination of your wage level and position by the Dept of Labor based upon the job description provided by your company. The ETA 9089 (ie PERM) is not affected as it asks a company to disclose whether it has had a layoff in the past 6 months in positions related to the one you will occupy upon obtaining a green card. However, the recruitment phase may be affected because the company will have to perform external recruitment for your position in its test of its labor market before you can be certified under PERM. This includes placing a job order with the state workforce agency, doing an internal posting disclosing that it will offer you a position at a specified wage, posting 2 Sunday newspaper ads in the area of intended employment, and 3 alternate forms of recruitment such as but not limited to website posting, 3rd party posting such as on Indeed or Monster, local newspaper ad, radio/TV ad, or college recruitment assuming that this is a professional position. If the company receives resumes from U.S. workers who seem like they may be qualified for the position, your company will need to contact/interview these candidates. If a candidate is able, willing, qualified and available to take the position, the company will have to offer your position to that qualified/able U.S. worker in its test of the labor market. Therefore, the recruitment phase may be affected and you must discuss the above possibility with your employer and verify that it is willing to do external recruitment on your green card position to test the U.S. labor market during this hiring freeze.

2. To apply for a PERM green card, the employer must be willing to hire full-time employees

A reader asks:
I am currently working as an engineer in a company with a work visa. What is certain now is that the company will no longer recruit full time engineers in the future, but will turn to outsourcing to find contractors. Excuse me, will this affect my PERM application and the advertisement before application?

Arthur Lee Esq. answers:
It depends on the circumstances of your case. First, your employer must understand that if your PERM case is successful, it must hire you as a permanent fulltime employee upon your getting your green card. If your employer is not willing to do that, then there is no basis for your PERM labor certification case. Second, during the recruitment process, your employer must test the labor market and interview all apparently qualified candidates for a fulltime engineering position. At this stage, there must be a willingness on the part of your employer to hire a fulltime engineer. Since your employer is testing the market for your proffered fulltime position, it must be willing to replace you with a qualified and willing U.S. worker who meets the qualifications as a fulltime employee if such a person applies and your employer has no other open position. As a side note, if there is a layoff in the engineering position in the six months prior to filing ETA 9089, your employer would need to notify and consider previously laid off workers in the engineering roles for your PERM position.

3. To track for case processing times

A reader asks:
It has been 3 months since I did fingerprints for my I-485. My application number is in the MSC239019 section. I finished fingerprinting in February, and it has been over 4 months. The case status is still showing “Case Was Updated.” When do I need to check with EMMA to speed up my case process?

Arthur Lee esq. answers:
I-485 processing times vary based upon the type of I-485 you are filing eg. employment-based, family-based, asylum-based, etc., and which local field office is adjudicating your I-485 application. The field office adjudicating your application will typically be your geographically-located local USCIS field office. You can visit the USCIS website page for processing times (https://egov.uscis.gov/processing-times/) and enter your case type (I-485, and specify which type), and your field office, and the website will inform you of the normal processing times for your type of I-485 application. You can also enter the date in which your I-485 application was filed at the bottom of the page. Once you enter that, the webpage will tell you whether your case is being processed normally or if it is outside normal processing times. If it is outside normal processing times, then you may file an eRequest or chat with EMMA to place a service request to inquire about the status of your case.

1. I-140 has just been approved and I want to change jobs…

A reader asks: 
At present, my H-1B’s three years are almost used up and I am about to renew it. For the sake of legal status, I have been working in a small company with low wages. I consulted about job-hopping before, but they all suggested that I should try to change jobs after my I-140 was approved. At present, my I-140 has just been approved less than 180 days. I plan to start looking for a job now. My questions are:

1. At present, the processing time for PERM is getting longer and longer.  If I switch to a new company, how long will it take to re-apply for PERM+I-140?
2. Are there any differences in the relevant policies for green cards of construction companies?
3. I requested to put the phrase of applying green card on day 1 in my contract, therefore, I believe only small companies would hire me, correct?  At present, I am struggling whether to ask my family for money for another four years or take the risk of possible problems/risks to do I-140 again? I am already exhausted from getting this I-140 approved.

Arthur Lee Esq. answers:

1. Firstly, you should make sure not to leave your current position until your I-140 has been approved for more than 180 days if fearful that your employer will seek to revoke it. If you are from a country such as China or India which is backlogged on the visa bulletin, then a withdrawal of an approved I-140 petition by your current employer may still help you in giving you an earlier priority date (i.e. when your PERM was filed or your I-140 was filed if there was no PERM labor certification). If your I-140 is revoked due to fraud or willful misrepresentation, revocation of labor certification, or invalidation of labor certification, then you do not retain an old priority date. Again, this only truly helps you if you were born in a country with significant backlog, which I would assume that you are since you have not applied for a green card yet. A timely revocation within 180 days by an employer would disadvantage you when you need to be on H-1B status for over the 6 year maximin time limit.
   In the case that you found a new job, you would need to redo the labor certification process—meaning filing a prevailing wage determination, testing the labor market, and filing ETA 9089, then filing another I-140. The good news is you would likely be eligible to keep your old priority date. However, this process would likely take another 2 years to get another approved form I-140 (with I-140 premium processing) with your new position. Then, you may file an I-485 application once your retained priority date becomes current. Typically, an adjudication on an employment based I-485 will take approximately 1 year. 
   I note that the labor certification steps may be skipped if you have an approved I-140 (or pending I-140 that is ultimately approved in the EB-1, 2, or 3 categories), and you have a properly filed I-485 application pending with USCIS for 180+ days. In that case, you may “port” your I-140 petition to a job in the same or similar job classification. But in your case, porting is not available as you have not filed an I-485 yet.
2. In USCIS’ eyes, there are not. Your job position would need to make sense in terms of the company’s needs, the company would need to show the ability to pay you the stated fulltime salary as promised in the labor certification application, and you would need to be a full-time salaried W-2 employee upon receiving the green card.
   However, due to the nature of many construction jobs, there are some things that you and your potential employer need to look out for. Some jobs require licensure by the state and local government. For instance, if you are working as an engineer (mechanical, civil, etc.), you may need an engineering license unless you plan to work under the supervision of a licensed engineer; architects, electricians, and general contracted construction workers generally need licenses too in many jurisdictions. Therefore your employer must review the relevant licensure requirements in your jurisdiction to ensure that you are qualified for your proffered green card position. Also, PERM recruitment for construction-related positions may involve notifying a labor union that a company is recruiting a foreign worker in a position. As such, the company and employee should determine whether a labor union covers the green card position and must post a notice of intent to employ a foreign worker with that union. Also, a construction-related position may require the foreign worker to travel to construction sites. In such a case, a notice of filing should be posted at the sites where the employee will perform work as well as internally using all in-house media according to normal internal procedures. Should travel be anticipated for areas outside the metropolitan statistical area of the primary worksite, additional recruitment may be required.
3. All companies have their own policies—some are willing to sponsor, some are not. Larger size companies may not be willing to include the language that you wish in their employment contracts.  However, I do note that it may be more difficult for a small company to sponsor you as it would need to show financial viability to pay you a full-time DOL-approved salary upon your receipt of a green card. Also its human resources department (if it has one) may not have the knowledge or experience in immigration matters as a larger company.

2. Apply for EB-1A on your own, not necessary need an employment letter

A reader asks:

I am working in the United States, and I am looking for someone to help me apply EB-1A. The person must write an employment letter to prove my work, and I will not change the field and need to ask the company to sign. Is this necessary? Is it enough to prove my job by paystubs? Because I will not change my field, I could sign it myself correct? As I feel it has nothing to do with the company, I don’t want the company to know that I am filing the petition myself. Is this idea feasible?

Arthur Lee Esq. answers:
As a condition of eligibility for EB-1A status, you must be able to show that you will be working in the same field in the United States in which you have extraordinary ability and that you will provide benefit to the United States. The adjudicating officer will decide whether you have proven these points based upon the totality of the evidence. Since you are self-petitioning, there is no requirement for a signed letter from an employer. However, having such a letter would be good evidence to show that you will continue to work in your field of expertise and provide a benefit. If you would prefer not to get such a signed letter, you can provide other evidence showing that you will continue to be in your field of expertise after your EB-1A is approved including but not limited to: (1) a showing that you have recently been working in your field of expertise such as paystubs, current job letter, and letters from others who know your work (not necessarily from management) and can attest that you are continuing to work in your field of expertise; (2) any recent contributions you have made to your field of expertise showing a continued interest in the pursuit of the field; and/or (3) any other evidence you can think of that would show that you are committed to your field.

1. To be eligible for an EB-2 NIW, your endeavor should be beneficial to the US

A reader asks: 
I graduated in 2011 in China with a master’s degree, and I worked as a computer professional teacher in a university for the past 12 years. Recently, because of my children’s education, I have the idea of immigrating. The first thing I considered was to New Zealand or Canada. Basically, people must go there before they can get their status. I don’t want to resign now because my children are still little. Now a middleman recommended me to do NIW, and said that I could apply while in China, and I am not in a hurry to go overseas anyway. The current situation is that I have 7 papers, patents and software works which were of average quality, and served as referees for some national competitions. I feel that my qualifications are quite average.  However, I talked to several China’s middleman, they all thought my qualifications are sufficient, but they did not mention any of the risk. I am very confused now, please help.

Arthur Lee, Esq. answers:
You might be eligible for an EB-2 NIW. The three criteria for demonstrating your eligibility for NIW are: (1) that your proposed endeavor has both substantial merit and national importance; (2) that you are well-positioned to advance this endeavor; and (3) that on balance, it would be beneficial to the U.S. to waive the job offer and labor certification requirements.

That said, it is unclear what your proposed endeavor would be, and how it would be beneficial to the U.S. government. Assuming that your proposed endeavor meets the criteria, the second question needs to be addressed whether you are well-posotioned. Your Master’s degree (assuming this is in a field that is computer related), having 7 papers/patents/software, and being a computer science professor at a university would be considered. It would also be a good idea to have experts in your field write letters of recommendations describing your accomplishments in the field and how you are well-positioned to advance this field with your work in the United States to solidify your evidence on being “well-positioned.” NIW is on a case by case basis, so an adjudicating officer would need to find that on balance, your proposed endeavor has substantial merit and national importance—as such, your endeavor with computers must be worthwhile to the U.S. government. In your NIW filing, you must show that your endeavor is worthwhile in that it will help advance human knowledge, create jobs, advance the economy, or a field in the United States that the current administration values. The Biden administration through its policy memorandum encourages granting NIW where a foreign worker will advance the STEM (science technology engineering mathematics) fields. Some examples of endeavors that have been found worthwhile in published decisions include being a software developer of stock option valuation, and a software developer with a PhD in music technology applying computer technology to music-related areas for the interests of the U.S. 

Also, an officer must decide whether on balance, it would be beneficial to the US to waive the job offer and labor certification requirements. This inquiry looks into factors such as whether you will be self-employed in a manner that does not adversely affect U.S. workers; will own a business that provides jobs for U.S. workers; your work will otherwise lead to job creation; your endeavor has potential to generate considerable revenue consistent with the economy; your endeavor will benefit the U.S. even if other U.S. workers are available; national interests in your contributions are sufficiently urgent (such as U.S. competitiveness in STEM fields); or if labor certification is impractical for your position. You may wish to consult with a qualified immigration attorney who will further advise you on your qualifications as an NIW applicant, and the risks associated with filing such an application.

2. Should I do an appeal or file a motion after my EB-1A was denied?

A reader asks: 
I am in China. I submitted the EB-1A application in June last year and received a denial letter in April this year. I submitted a total of four categories and only approved two. What should I do next? Should I do an appeal or file a motion? What is the difference between these two?

Arthur Lee, Esq. answers:
The difference between an appeal and a motion is that a motion will be filed to the same authority that adjudicated your case previously. In your case, it would be the same USCIS service center that handled your EB-1A application. There are two types of motions: (1) motion to reopen would be a motion to the service center to consider new facts that were not present at the time of your original filing; (2) a motion to reconsider is a request to review its application of the law in its previous decision. Meanwhile, an administrative appeal asks a different branch of USCIS (in this case the Administrative Appeals Office (AAO) ) to review the field office’s decision. Just like a motion, an appeal must typically be filed within 30 calendar days of the issuance of denial. Unlike a motion, an appeal requests de novo review which means that the AAO looks at the record anew including all facts and applications of law and it may address new issues that were not raised or resolved in the lower agency’s decision. USCIS aims to adjudicate its motions within 90 days, and the AAO aims for 180 days. Whether to file an appeal or motion is up to you.  Many attorneys opt for appeal.  However, if you choose to file a motion note that you can still appeal to the AAO if your motion is denied or dismissed.

3. The duration of an H-1B visa depends on several factors

A reader asks: 
I worked in the United States for more than three years before, and I came back to China this year. In early May, I applied for the first H-1B visa at the Shenyang Consulate. During the visa interview, I told the visa officer that I had been working at Qualcomm, and my work was in the sensitive direction of chip verification. I thought I would be background checked, to my surprise, I passed the interview and my passport was submitted.  However, after getting the passport back, I found that the H-1B is only valid for 4 months. My I-797 is valid until July 2025. My passport doesn’t expire until 2025. I don’t understand why the H-1B is only given 4 months, shouldn’t it be a one-year H-1B?

Arthur Lee Esq. answers,
The duration of an H-1B visa depends on several factors including the specific circumstances of your case, the discretion of the consular officer, and any supporting documentation provided. Since you have a valid passport for 2 years, as well as valid H-1B status for 2 years, there is nothing on the reciprocity schedule for H-1Bs with China to show why you would be given such a short time. On H-1B reciprocity with China, you should be given 12 months or the period of validity of your H-1B petition, whichever is less. Since your passport and H-1B status are valid until 2025, it is surprising that you did not get a 1 year visa. It seems that reason for the shorter duration on your H-1B visa was the consular officer’s discretion, if not a mistake. Consular officers have the authority to determine the validity period of a visa based upon their assessment of the individual’s circumstances such as duration of job offer, petitioner’s compliance history, and other relevant information. While this is just speculation, perhaps the officer chose to give you an easier interview, but limit your ability to go in and out of the country without further questioning due to your work in a sensitive area in technology.